Khan v Shakeel [2000] FJHC 125; Hbd0004.2000s (27 November 2000)

Fiji Islands - Khan v Shakeel - Pacific Law Materials

(AT SUVA)

DIVORCE ACTION 4 OF 20span>

Between:

FAREA FEROZA KHAN

Applicant

and

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MOHAMMED SHAKEEL

ass=MsoNormal align=center style="text-align: center; margimargin-top: 1; margin-bottom: 1"> Respondent

P. McDonnell for the Applicant

DECISION

This is an application by the wife for leave to present a petition for divorce within 3 years of her marriage. Under the provisions of Section 30 (3) of the Matrimonial Causes (Cap. 51):

“the … Court shall not grant leave … to institute proceedings a decree of dissolution ofon of marriage] except on the ground that to refuse to grant that leave would impose exceptional hardship on the applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage”.

This provision is similar to on 2 of the English Matrimonial Causes Act 1950 and Section 43 (3) of the Australian Matrimatrimonial Causes Act 1959, both of which have now been repealed.

Mr. McDonnell accepted that depravity was not being advanced and that the only question before the Court was whether on the evidence the applicant had established exceptional hardship.

There are three affidavits on file. Two are by the applicant and one by her mother. From the affid the following facts emergemerge.

The parties were married in June 1998 some 3 months after a child of the family was born. In December 1999 the Suva Magistrates’ Court granted the applicant interim custody of the child and a non molestation order against the respondent.

It is not clear when the parties last liogether but in October 2000 the applicant filed an affidavit to the effect that they had noad not lived together for 6 months and that the respondent’s whereabouts were unknown. The applicant is living with her mother.

The applicant and her mother say that the respondent was frequentolent towards her and that they fear that he may return andn and assault her again. They both say that there is now no prospect of a reconciliation. In all the circumstances, the applicant says:

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “I wish to be allowed to continue with my life and if I cannot get aolution early I will be pute put to unnecessary hardship and will be unable to lead a normal life”.

I have sympathy for the applicant and take the view thations 30 (1) and 30 (3) of the Act are unduly restrictive. Ave. As noted their counterparts have been repealed. The central problem for the applicant is however that the test is not “unnecessary hardship” but “exceptional hardship” in other words hardship which is not normally incidental to the breakdown of a marriage.

It is clear from a perusal of the authorities (e.g. Re a proposed petition, Bowman v. Bowu> [1949] P 353; [1949] 2 A] 2 All ER 127; Hillier v. Hillier and Latham [1958] P186; [1958] 2 All ER 261) that the behaviour relied upon must truly be exceptional before leave will be granted. While the law in Fiji remains unaltered the same test must continue here to apply. In my opinion the applicant has not discharged the onus upon her and accordingly the application fails and is dismissed.

M.D. Scott

Judge

27 November 00.

4 OF 2000S